This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Anthony Farron Campbell,
Filed May 22, 2007
Dissenting, Dietzen, Judge
Anoka County District Court
File No. KX-04-7398
Lori Swanson, Attorney General, 1800
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain,
Assistant County Attorney,
John M. Stuart, State Public Defender, Bridget Kearns Sabo, Davi Axelson, Assistant Public Defenders, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Dietzen, Judge.
This is an appeal from appellant’s conviction of first-degree assault. Appellant argues that the district court abused its discretion in admitting into evidence a wooden board without any evidence linking it to the assault, or to appellant. Appellant also argues that the prosecutor committed prejudicial misconduct in closing argument by manufacturing an explanation for the lack of blood on the board. We find prejudicial error based on prosecutorial misconduct. We reverse and remand.
Appellant was convicted by
Charles Pratt, the victim, was dating Lucht. On the evening of July 28, Lucht, Pratt, and a friend of Pratt’s, Thomas Nelson, were together. Pratt wanted appellant to return Lucht’s vehicle so he could give Nelson a ride home.
Pratt called appellant and left several angry messages demanding the return of the vehicle. Pratt, Lucht, and Nelson walked to appellant’s home in search of the vehicle, and then to Burger King, the employer of appellant’s girlfriend. After leaving Burger King, the three gave up and returned to Pratt’s apartment. Pratt, Nelson, and Lucht remained at Pratt’s apartment and drank a couple of beers. Later in the evening, Pratt and Lucht retired to the bedroom while Nelson remained in the living room to sleep on the couch.
Around approximately , Nelson heard a knock on the apartment window. Nelson identified the person outside, who asked for Pratt, as “Dean.” Nelson awoke Pratt who went to the window and corrected Nelson, identifying the person as appellant. Pratt went outside and greeted appellant. Appellant failed to answer him and instead walked back towards the vehicle. Pratt testified that he got a good look at appellant and stated that he had no doubt it was appellant.
According to Pratt, appellant retrieved a wooden object from the back seat of the SUV, closed the door, and approached him. Pratt testified that he was not sure if the wooden object was “a baseball bat or what,” but after waking up in the hospital believed it was a Louisville Slugger. Pratt remembered being struck on the left side of his face, spinning around, and then being struck again. Pratt could not recall anything following the two blows.
Before heading outside to find Pratt, Nelson testified to witnessing a white SUV driving away. Nelson found Pratt lying on the sidewalk seriously injured and bleeding. Nelson notified Lucht and ran to a nearby police station. Pratt sustained extensive injuries from the attack and was hospitalized for two weeks.
The responding officer did not secure the perimeter around the crime scene, but testified to retrieving and securing into evidence a wooden board. The officer testified that he found the board “in the grassy area behind [Pratt].” The officer did not photograph the board’s position in relation to the victim or the crime scene in general. Swabs from the board were tested for blood, but nothing turned up as blood on the board. Fingerprint testing of the board was requested and no fingerprints were found on the board. A search of the vehicle appellant was driving while apprehended produced no evidence. The vehicle was not combed for fibers.
Appellant was convicted and sentenced. This appeal followed.
Admission of physical evidence
Appellant argues that the
district court abused its discretion by introducing into evidence a wooden
board found at the scene because it was neither connected to the crime nor to
appellant. A district court’s admission
of physical evidence will be upheld unless it constitutes an abuse of
discretion. State v. Daniels, 361 N.W.2d 819, 827 (
Appellant contends admission was improper because the wooden board lacked any connection whatsoever to him or the crime – there were no fingerprints, blood, or other bodily fluid found on the board, there was no eyewitness identifying appellant as having possession of that board, and there was no testimony that appellant had access to that board. An officer testified that he found teeth, a retainer and the board “within close proximity of the victim,” but no photograph was taken of the crime scene documenting the board’s location. The police also did not establish a secure perimeter around the crime scene.
Appellant relies on State v. Lubenow, 310 N.W.2d 52 (
Lubenow is instructive, but respondent correctly points out some differences. Here, the board is linked to the crime since it was found at the scene and Pratt testified that he was struck with a wooden object. Unlike in Lubenow, where the victim never identified the defendant, here, Pratt identified appellant. Despite Pratt’s condition of possible intoxication, a victim’s identification is relevant and goes to the jury on weight.
“Evidence that in some
degree advances the inquiry and therefore has probative value is relevant
evidence and may be admitted.” State v. Morrison, 437 N.W.2d 422, 427 (
Pratt was never even asked to identify the board. No supporting medical or expert testimony was presented regarding the instrumentality used to cause Pratt’s injuries. The state failed to support its claim that the board in evidence either caused or “could have” caused Pratt’s injuries.
Appellant argues correctly that if admission was in error, it created substantial prejudice because whether it was the assault weapon or not, it gave a picture to the jury (with no strong argument of relevance) of a dangerous weapon. The court was so concerned about the proposed exhibit that the judge warned the state and put specific limitations on the prosecution’s use and display of the board. A short while later on that same day, in defiance of the court’s warning, a witness for the state carried the board into the courtroom and placed it adjacent to the witness stand. After being scolded by the court, the state apologized and admitted a lack of foundation with that witness to admit the board. No curative instruction was issued. Later, after further foundation through another witness, the board was admitted with no objection.
prosecutorial misconduct during the state’s closing argument. A prosecutor may not seek a conviction at any
At trial, appellant failed
to object to the alleged misconduct. A
defendant who fails to object to prosecutorial misconduct at trial generally
waives the right to have the issue considered on appeal. State
v. Sanders, 598 N.W.2d 650, 656 (
Appellant challenges the state’s closing remarks regarding the lack of blood found on the wooden board. During closing arguments, the prosecutor stated:
Now, a lot was made of the fact that the board didn’t have any blood on it. And there wasn’t any blood on it. Folks, what I would ask you today is to really think about the chronology of events and just kind of use some common sense and ask yourself, if that board was used, would there necessarily be any blood on it, even if his face ended up all bloody?
If you remember Charles Pratt’s testimony, he said the first blow was right in the face. The next one was in the back of the head. After that he didn’t remember so we don’t really know what happened.
But, you know, that first blow is going to be on thin skin; there’s not going to be any blood on there. There’s not going to be any blood transferred onto a stick. That next blow is in the back of the head, which, you know, there’s not going to be any blood back there yet. And even if there was another blow on his face, just because his face ended up being bloody a couple minutes later when people found him, doesn’t mean that it was there instantaneously. You know, there would have been blood coming out of his eye, there would have been blood coming out of his mouth but it would not necessarily have been instantaneous. It is very, very reasonable to believe that he could have been beaten with that stick multiple times, since it would have been in different parts of the body, and there wouldn’t have been any blood on that stick.
Appellant contends that these
statements constitute plain error because they unduly prejudiced the jury by
drawing conclusions unsupported by the evidence and proposing his theory for
the lack of physical evidence on the board.
We agree. During closing
argument, the prosecutor has the “right to present to the jury all legitimate
arguments on the evidence, to analyze and explain the evidence, and to present
all proper inferences to be drawn therefrom.”
State v. Wahlberg, 296 N.W.2d
408, 419 (
The prosecutor went far beyond argument and inference here. First, the prosecutor said “use some common sense.” Then the prosecutor said from the first blow on the face “there’s not going to be any blood on there.” Common sense tells you exactly the opposite. Then the prosecutor said, “that next blow is in the back of the head, which, you know, there’s not going to be any blood back there yet.” Common sense tells you exactly the opposite. Pratt sustained extensive injuries, including a frontal bone fracture just above his left eye, an eye socket fracture, a lacerated upper eyelid, a cheek bone fracture, a fractured lower jaw, and a collapsed lung. The prosecutor stated, “[i]t is very, very reasonable to believe that he could have been beaten with that stick multiple times, since it would have been in different parts of the body, and there wouldn’t have been any blood on that stick.” Common sense tells you exactly the opposite.
The state offered zero medical evidence supporting any inference that a wooden board could have caused the extensive injuries it did without leaving any traces of blood on the board. The prosecutor was not simply arguing inferences, but making statements of fact, as if he were an expert, on the transference of blood from a victim to an alleged assault weapon.
The prosecutorial misconduct, which the state has failed to demonstrate did not effect appellant’s substantial rights, requires reversal for a new trial in the administration of justice.
Reversed and remanded.
DIETZEN, Judge (dissenting)
I respectfully dissent. Appellant was convicted of first-degree assault for the severe and brutal beating of victim Charles Pratt arising out of a dispute over the victim’s girlfriend. The majority rests its conclusion to reverse on the district court’s unobjected-to admission of a wooden object and unobjected-to prosecutorial misconduct during closing argument. Because appellant waived his right to object to the wooden object, and the disputed portion of the prosecutor’s closing argument was non-prejudicial and did not deprive appellant of a fair trial, I would affirm the conviction.
Admission of the Wooden Object
Appellant argues that the district court abused its discretion by admitting the wooden object into evidence following the foundational testimony of the police officer who recovered it “within close proximity of the victim,” and the testimony of the victim that a wooden object was used to assault him. Prior to trial, appellant brought a motion in limine asserting that there was no foundation for the wooden object, and, therefore, it should not be introduced. The district court ordered that the wooden object should not be brought into court until proper foundation was introduced. When the police officer testified, he brought the wooden object to the stand in order to identify it. Subsequently, the prosecutor was admonished by the court for failing to follow its order.
After the victim testified,
the prosecutor moved to admit the wooden object, appellant’s counsel stated “no
objection,” and it was received. By
failing to object, appellant has waived the right to challenge the
admissibility of the wooden object. State v. Vick, 632 N.W.2d 676, 684-85 (
The majority does not directly address whether the district court abused its discretion in admitting the wooden object. Instead, the majority argues that the prosecutor may have committed misconduct by having the officer bring the wooden object to the stand before it was admitted into evidence. The crux of the majority’s argument is that the manner in which the wooden object was introduced contributed to an unfair trial. I disagree.
We examine unobjected-to
prosecutorial misconduct under the plain error doctrine. State
v. Ramey, 721 N.W.2d 294, 302 (
Prosecutorial Misconduct During Closing Argument
Secondly, the majority
concludes the prosecution engaged in misconduct by arguing that it is
reasonable to believe that the victim could have been beaten with the wooden
object and “there wouldn’t have been any blood on that [wooden object].” I
agree with the majority that the prosecutor’s argument was not supported by the
evidence in the record and, therefore, constitutes plain error. Under Ramey,
the burden then shifts to the state to show that there is no “reasonable
likelihood that the absence of the misconduct in question would have had a
significant effect on the verdict of the jury.”
Ramey, 721 N.W.2d at 302 (citation
omitted). On this record, the state has
met its burden of establishing that it’s conduct did not materially undermine
the fairness of the trial. State v. Fields, ___ N.W.2d ___, ___, 2007
WL 1288493, at *4 (
Thus, we turn to the seriousness of the prosecutor’s misconduct and the likely effect of the misconduct on the jury. First, we observe that the prosecutor’s misconduct, that is, speculating on the lack of blood on the wooden object, does not implicate a core constitutional right such as the defendant’s right not to testify, nor did the prosecutor misstate the presumption of innocence or the burden of proof. Ramey, 721 N.W.2d at 300. Here, the prosecutor in his closing argument stated that appellant brutally beat the victim with a wooden object. In response, appellant did not dispute that a wooden object was used to assault the victim. Rather, appellant denied that he assaulted the victim and asserted that someone else did it. In this context, it is unlikely that the prosecutor’s comments about the lack of blood on the wooden object had a substantial effect on the jury. Specifically, the prosecutor’s comment was unimportant and neutral to appellant’s defense that someone else assaulted the victim. Clearly, whether the wooden object had blood on it or not has nothing to do with whether appellant or someone else assaulted the victim.
Further, the prosecutor’s
argument that it is unlikely that a person would bleed immediately when struck
on the head by a wooden object, is contrary to a layperson’s experience and to
common sense, and likely was rejected by the jury. Specifically, the court properly instructed
the jury that the arguments of the attorneys do not constitute evidence, and
that the jury should base their decision on the evidence. We presume that the jury followed the court’s
instruction. State v.
Finally, the evidence that
contradicted appellant’s defense and supported appellant’s conviction was
On this record, it is unlikely that the prosecutor’s speculation that striking the victim on the head with a wooden object would not immediately draw blood had a significant effect on the jury verdict or was prejudicial to appellant’s right to a fair trial. Therefore, I would affirm the conviction.
Christopher J. Dietzen, Judge
 Appellant testified he did not feel compelled to return the vehicle because Lucht had not requested he do so.
 Appellant further argues insufficient evidence to support a conviction and a number of other issues in his pro se supplemental brief. Because we are reversing and remanding on the issue of prosecutorial misconduct, we do not reach these additional claims.
 Appellant’s statements on this point have changed over time. Initially, appellant denied that he went to Pratt’s apartment at all. In a later statement to the police, appellant admitted that he went there and hit Pratt with his fists. At trial, appellant admitted that he went to the apartment but claimed that he only pushed Pratt in the stomach or chest.